Amy Friedman v. Malden, City of - Public Schools (SPR 20210718)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2021 SPR21/0718 Shirley Dorai Records Access Officer Malden Public Schools 77 Salem Street Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Bruce Friedman appealing the response of Malden Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 25, 2021, Mr. Friedman requested “… any emails between any members of the School Committee where the recipients (to, carbon copy, and/or blind carbon copy) of the email would create a quorum from January 2019 through the date you answer this request … in the electronic form which they are regularly maintained and must include all email metadata.” Previous Determination The requested records were the subject of a previous determination. See SPR21/0589 Determination of the Supervisor of Records (March 17, 2021). In my March 17th determination, I found the School had met its burden to assess a fee for the time spent to segregate and redact the requested records. Unsatisfied with the School’s March 10, 2021, response, Mr. Friedman petitioned this office and this appeal, SPR21/0718, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Shirley Dorai SPR21/0718 Page 2 April 6, 2021 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee Estimate – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The School’s March 10th response In its March 10, 2021 response, the School states it “estimates a total of 68.46 hours. In accordance with 950 CMR 37.02(2)(m)(1) Mr. Friedman will not be charged for the first two (2) hours of those services. 66.46 multiplied by $25 per hour yields a fee estimate of $1,661.50.” The School indicates it “has approximately 1,785 emails that may be responsive to his request.” The School further indicates, “[e]ach of the 1,785 emails must be reviewed. Search time includes the time needed to locate and identify, pull from the files, copy and re-shelve or refile a public record. However, it shall not include the time expended to create the original record. Malden spent three hours locating the emails. Malden took a sample of ten emails. It took 20 minutes to review the emails to determine which ones are responsive to the request, as some of the emails had multiple emails in a chain. Extrapolating that up, it would take 3,570 minutes or

Shirley Dorai SPR21/0718 Page 3 April 6, 2021 59.5 hours to search these records. Thus, Malden estimates a total of 62.5 hours to search the records.” The School explains, “[o]ut of the sample, one of the ten emails was responsive. Each email must be reviewed as they may contain attorney-client privilege, student record information or private personal information under Exemption (C) ... [i]t took Malden 1 minute to segregate the relevant email. Malden thus estimates another 178.5 minutes or 2.98 hours.… Malden estimates another 1 minute for redactions based on that email or another 178.5 or 2.98 hours.” In his appeal, Mr. Friedman contends “[t]he emails do not need to be read to determine if they are responsive…[a]ll that is required to search for responsive records, even if it is a manual process is to read the remaining fields in the header of the email, To:, Cc:, Bcc: (we already have the From: field). If the sum of people in these fields are members of the specific group of nine total people representing the public body are a simple majority of the body, the record is responsive, if not, it is not.” The School’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. Specifically, it is unclear why it will take the School “62.5 hours to search the records.” Further, where the School has indicated the responsive records are emails, it is unclear why “[s]earch time includes the time needed to locate and identify, pull from the files, copy and re-shelve or refile a public record.” The School must clarify these matters. This office continues to encourage Mr. Friedman and the School to communicate to facilitate providing records more efficiently and affordably. Any fee estimate by the School must be in compliance with the Public Records Law and its Regulations. Please be advised the School received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR21/0589 Determination of the Supervisor of Records (March 17, 2021). Conclusion Accordingly, the School is ordered to provide Mr. Friedman with a revised response, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman Felicia Vasudevan, Esq.